Case 2:06-cv-05578-SVW-JC Document 391 Filed 12/21/2009 Page 1 of 46 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 COLUMBIA PICTURES INDUSTRIES, ) CV 06-5578 SVW (JCx) 11 INC., et al., ) ) ORDER GRANTING PLAINTIFFS’ 12 Plaintiffs, ) MOTION FOR SUMMARY JUDGMENT ON ) LIABILITY [249] 13 v. ) ) 14 GARY FUNG, et al., ) ) 15 Defendants. ) ) 16 17 18 19 I. INTRODUCTION 20 21 In September 2006, Plaintiffs1 filed a Complaint alleging copyright 22 infringement against Defendant Gary Fung (“Fung”). [Doc. No. 1.] 23 Plaintiffs’ Complaint contends that Fung operated a file-sharing 24 service as well as related computer servers as a part of an ongoing 25 file-sharing network that profits from alleged copyright infringement 26 1 27 The Plaintiffs in this action are: Columbia Pictures Industries, Inc.; Disney Enterprises, Inc.; Paramount Pictures Corporation; 28 Tristar Pictures, Inc.; Twentieth Century Fox Film Corporation; Universal City Studios LLLP; Universal City Studios Productions LLLP; and Warner Bros. Entertainment, Inc. Case 2:06-cv-05578-SVW-JC Document 391 Filed 12/21/2009 Page 2 of 46 1 by its users. Plaintiffs then filed a First Amended Complaint adding 2 Defendants Isohunt Web Technologies, Inc. (“Isohunt, Inc.”) and Does 1 3 through 10. [Doc. No. 13.]. (The Court refers to Fung and Isohunt, 4 Inc. collectively as “Defendants.”) 5 Plaintiffs now bring this Motion for Summary Judgment [Doc. No. 6 249] on the grounds that Defendants’ users have infringed their 7 copyrights and are liable under theories of inducement, contributory 8 infringement, and vicarious infringement. The Court requested 9 Supplemental Briefing in an Order dated April 3, 2008. [Doc. No. 342.] 10 The Court requested further Supplemental Briefing and augmentation of 11 the record in an Order dated August 25, 2009. [Doc. No. 358.] 12 The material facts supporting Plaintiffs’ claims are almost wholly 13 unrebutted. Generally, Defendants’ rest their case on legal arguments 14 and meritless evidentiary objections, and offer little of their own 15 evidence that directly addressed Plaintiffs’ factual assertions. 16 Accordingly, summary judgment is appropriate in the present case. 17 Having considered the moving papers, as well as arguments presented at 18 hearing and in supplemental briefing, the Court Grants Plaintiffs’ 19 Motion for Summary Judgment on Liability. 20 21 II. FACTUAL BACKGROUND 22 23 A. The Torrent Structure 24 Plaintiffs own or control a large quantity of copyrights within 25 the entertainment and popular media fields. (Plaintiffs’ Statement of 26 Undisputed Facts (“Pls.’ SUF”), ¶ 1). Defendant Fung maintains and 27 operates a number of websites, including www.isohunt.com, 28 2 Case 2:06-cv-05578-SVW-JC Document 391 Filed 12/21/2009 Page 3 of 46 1 www.torrentbox.com, www.podtropolis.com, and www.ed2k-it.com 2 (collectively “Fung sites” or “Defendants’ sites”), that allow users to 3 download files to their computers. 4 Plaintiffs maintain that Fung and his websites facilitate their 5 users’ infringement of copyrighted files. Specifically, Plaintiffs 6 assert that, through his operation and promotion of the websites, Fung 7 allows users to download infringing copies of popular movies, 8 television shows, sound recordings, software programs, video games, and 9 other copyrighted content free of charge. Users of the Fung sites have 10 downloaded works that are copyrighted by Plaintiffs; these downloads 11 have taken place without authorization from Plaintiffs. (Pls.’ SUF, ¶¶ 12 2-3.) 13 The Fung sites are an evolutionary modification of traditional 14 “peer-to-peer” sharing sites such as Napster and Grokster. A peer-to- 15 peer service provides a method for users of a network to exchange files 16 quickly and easily between the individuals on the network – other 17 “peers”. See, e.g., Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, 18 Ltd, 545 U.S. 913, 919 (2005). (See also Horowitz2 Decl., at ¶ 12.) 19 2 Ellis Horowitz is a Professor of Computer Science and Electrical 20 Engineering at the University of Southern California. Mr. Horowitz has served as a tenured professor since 1983 and his relevant 21 research has been in the field of software development. (Horowitz Decl., at ¶¶ 3, 5.) 22 On summary judgment, expert opinions are admissible under the general requirements of Fed. R. Evid. 702, which requires that the 23 testimony be based on sufficient facts and be the product of reliable principles and methods, and that the witness has applied the 24 principles and methods reliably to the facts of the case. On summary 25 judgment, expert testimony is also subject to Fed. R. Civ. P. 56(e)(1), which requires a showing [1] that “the affiant is competent 26 to give an expert opinion and [2] the factual basis for the opinion is stated in the affidavit, even though the underlying factual 27 details and reasoning upon which the opinion is based are not.” Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir. 1985). 28 [cont’d on next page] 3 Case 2:06-cv-05578-SVW-JC Document 391 Filed 12/21/2009 Page 4 of 46 1 The content of the files shared therefore resides on the computers of 2 individual users rather than on central servers. (Horowitz Decl., at ¶ 3 12.) 4 Through use of the Fung sites, which are commonly known as 5 “BitTorrent” or “torrent” sites, users download content directly from 6 the computers of other users and not directly from the servers of the 7 Defendants, thus operating as a sharing service of the peer-to-peer 8 variety. (See Horwitz Decl., at ¶ 16.) In a BitTorrent network, 9 however, the download process is unique from that of previous systems 10 such as Napster and Grokster.3 Rather than downloading a file from an 11 [cont’d from prev. page] 12 Here, Horowitz’s testimony is admissible on summary judgment. See also Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 13 130-31, 133, 150, 152 (S.D.N.Y. 2009) (relying on Horowitz’s testimony). 14 Further, the Court notes that both parties’ experts (Dr. Horowitz and Dr. Waterman for Plaintiffs, and Dr. Gribble for 15 Defendants) are generally unrebutted. (See also footnotes 7 and 13, infra, for a discussion of the other experts’ qualifications.) 16 Generally, the Court relies on the experts with respect to three matters: first, the technological structure of Defendants’ websites, 17 which is agreed-upon in all material respects by Dr. Gribble (for Defendants) and Dr. Horowitz (for Plaintiffs); second, the statistics 18 regarding Defendants’ users’ downloading activities, which is set 19 forth by Dr. Waterman (for Plaintiffs) and wholly unaddressed by Defendants’ evidence; and third, the dispute over whether or not 20 Defendants were technologically capable of filtering copyright- infringing materials from their websites, upon which Dr. Gribble and 21 Dr. Horowitz disagree (and is discussed in greater detail infra, Part IV.B.4). 22 Accordingly, the experts’ declarations set forth admissible facts. Where unrebutted, these facts allow summary judgment in favor 23 of the party proferring the expert testimony on that particular issue. Where the experts’ disagreement raises a genuine dispute, the 24 Court will address the dispute accordingly. 25 3 Napster involved a peer-to-peer network with a central “search index” 26 that served as Napster’s collective directory for the files available on the server at any given time. In order to download the files from 27 another user in the Napster network, the individual would search the Napster server for the desired file and then select the desired file 28 [cont’d on next page] 4 Case 2:06-cv-05578-SVW-JC Document 391 Filed 12/21/2009 Page 5 of 46 1 individual user, users of a bit-torrent network will select the file 2 that they wish to download, and, at that point, the downloading will 3 begin from a number of host computers that possess the file 4 simultaneously. (See id. at ¶¶ 23-24.) BitTorrent technology relies 5 on a variety of mechanisms in order to accomplish the ultimate 6 downloading of an given file, including: (1) a software application 7 that users download, which is commonly referred to as a “client 8 application”; (2) websites, also known as “torrent sites,” which allow 9 users to select “dot-torrent files” that they wish to download; and (3) 10 servers, also known as “trackers,” that manage the download process. 11 (Horwitz Decl., at ¶ 17.) The client applications and trackers work 12 together through the use of a “BitTorrent protocol” which standardizes 13 the client-client and client-tracker communications. (Id.) These 14 components essentially work together to allow individuals to visit a 15 torrent site, download files, and keep track of those downloads – as 16 well as discover additional persons to download from – through the use 17 [cont’d from prev. page] 18 from a list of available users in the network. Similar to other peer-to-peer networks, the actual files shared never passed through 19 or resided on the Napster servers. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1011-1013 (9th Cir. 2001). 20 In contrast, the technology in the Grokster and Kazaa networks provided a distinct form of the peer-to-peer network. Unlike 21 Napster, there was no central indexing of available files. Instead, an individual scanning through the Grokster software would enter a 22 search term and the software itself, through use of a supernode – or indexing computer – would contact other computers seeking matching 23 files. When a result was found matching the query, the information regarding the results (the IP address and other information) would be 24 sent to the requesting computer.